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Office of the Information and Privacy Commissioner for Nova Scotia
Report of the Commissioner
Catherine Tully
REVIEW REPORT 19-06
August 14, 2019
Department of Energy and Mines
Summary: The applicant has been waiting almost five years for an open, accurate and
complete response to his access to information request. The responses he received thus far have
convinced the applicant that the Department of Energy and Mines is actively hiding information
and is using the access to information process not to promote transparency but rather to thwart
his right to know. The Commissioner finds that the Department’s responses so far have included
excessive fees, numerous unauthorized time delays, over-severing unsupported by any evidence
and a failure to process clearly responsive documents. The Commissioner recommends that the
Department reprocess the entire access to information request with few if any allowable
exemptions. The Commissioner further recommends that the Department refund the applicant’s
fee.
Statutes Considered: Freedom of Information and Protection of Privacy Act, SNS 1993, c 5,
ss. 5, 6, 7, 9, 11, 13, 14, 17, 20, 21, 22, 23, 39, 45; Freedom of Information and Protection of
Privacy Regulations, NS Reg 105/94, s. 6; Freedom of Information and Protection of Privacy
Act, RSBC 1996, c 165, s. 58.
Authorities Considered: British Columbia: Audit & Compliance Report F18-02 2018 BCIPC
52; Newfoundland and Labrador: Review Report A-2011-010 2011 CanLII 47545 (NL IPC);
Nova Scotia: Review Reports FI-12-01 2015 CanLII 54096 (NS FOIPOP); 16-05 2016 NSOIPC
5 (CanLII); 16-10 2016 NSOIPC 10 (CanLII); 19-05 2019 NSOIPC 6 (CanLII).
Cases Considered: A.B. v. Griffiths, 2009 NSCA 48 (CanLII); Atlantic Highways Corporation v.
Nova Scotia, 1997 CanLII 11497 (NS SC); Canada (Information Commissioner) v. Canada
(Minster of National Defence), [2011] 2 SCR 306, 2011 SCC 25 (CanLII); House (Re), 2000
CanLII 20401 (NS SC).
Other Sources Considered: Nova Scotia Department of Energy and Mines: Oil and Gas,
Offshore, “Play Fairway Analysis Atlas: The Analysis”, https://energy.novascotia.ca/oil-and-
gas/offshore/play-fairway-analysis/analysis; OETR Association, “OETR Association Play
Fairway Program: Using geoscience to revitalise interest in exploring Nova Scotia’s Offshore.”
GSEG Recorder, Vol. 34 No. 7, September 2009, https://csegrecorder.com/articles/view/oetr-
association-play-fairway-program; OIPC Guidelines for Public Bodies and Municipalities, “Duty
to Assist #1: Communication with Applicants” (January 25, 2019)
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https://oipc.novascotia.ca/sites/default/files/publications/18-
00070%20Duty%20to%20Assist%201%20-
%20Comm%20w%20App%20Guidelines%20Final%20%2823%20Jan%2019%29.pdf; OIPC
Guidelines for Public Bodies and Municipalities, “Duty to Assist #2: Conducting an Adequate
Search” (February 25, 2019) https://oipc.novascotia.ca/sites/default/files/publications/18-
00070%20Search%20Guidelines%20%282019%2002%2025%29.pdf; OIPC Guidelines for
Public Bodies and Municipalities, Duty to Assist #3: Third Party Notice (March 25, 2019)
https://oipc.novascotia.ca/sites/default/files/publications/18-
00192%20Duty%20to%20Assist%20-
%20Third%20Party%20Notice%20Guide%20%282019%20March%29.pdf; OIPC Guidelines
for Public Bodies and Municipalities, “Duty to Assist #4: How to Calculate Fees” (July 25,
2019) https://oipc.novascotia.ca/sites/default/files/publications/19-
00109%20Fees%20Guidelines%20%282019%20July%2025%29.pdf.
INTRODUCTION:
[1] The applicant sought access to all records relating to RPS Canada and RPS Group PLC. In
processing the applicant’s request, the Department of Energy and Mines (Department) took a
number of steps that convinced the applicant that the Department was actively hiding
information and using the access to information process to thwart the applicant’s right to know.
[2] In a series of responses over the course of almost five years, the Department released two
batches of records. The first batch was released three times with an increasing amount of
information disclosed with each iteration. On reviewing the records supplied, the applicant
became convinced that the Department was selecting meaningless documents (in the first batch)
and relying on a high fee estimate, time delays and excessive severing in an effort to undermine
his right of access to documents of substance in the second batch.
[3] The applicant’s appeal raised numerous issues relating to the duty to assist, adequacy of
search, timeliness, fairness of fees and applicability of exemptions. While a few matters were
resolved informally, the majority of issues remain unresolved and are set out below.
ISSUES:
[4] There are 11 issues in this review:
Duty to assist and timeliness
i. Were the Department’s decision letters open, accurate and complete as required by s.
7(1)(a) of the Freedom of Information and Protection of Privacy Act (FOIPOP)?
ii. Did the Department meet its duty to assist the applicant by conducting an adequate
search for records as required by s. 7(1)(a) of FOIPOP?
iii. Did the Department comply with the statutory timelines to respond to an access to
information request as required by s. 7(2) of FOIPOP when it placed the application on
hold?
iv. Were the time extensions taken by the Department authorized under s. 9 of FOIPOP?
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Fees
v. Were the fees charged for the first release calculated accurately and in compliance with
the requirements of s. 11 of FOIPOP?
Exemptions
vi. Is the Department authorized to refuse access to information under s. 13 of FOIPOP
because disclosure of the information would reveal the substance of deliberations of the
Executive Council or any of its committees?
vii. Is the Department authorized to refuse access to information under s. 14 of FOIPOP
because disclosure of the information would reveal advice or recommendations?
viii. Is the Department authorized to refuse access to information under s. 17 of FOIPOP
because disclosure of the information could reasonably be expected to harm the
economic interests of the public body?
ix. Is the Department required to refuse access to information under s. 20 of FOIPOP
because disclosure of the information would be an unreasonable invasion of a third
party’s personal privacy?
x. Is the Department required to refuse access to information under s. 21 of FOIPOP
because disclosure of the information could reasonably be expected to be harmful to the
business interests of a third party?
xi. Is the Department authorized to refuse access to information it deems “not responsive”
within otherwise responsive records?
DISCUSSION:
Background
[5] The applicant has a particular interest in Nova Scotia’s efforts to market offshore oil and
gas. RPS Canada (RPS) was a company hired to assist with a project intended to identify regions
around offshore Nova Scotia with potential hydrocarbon resources. The analysis and mapping of
these regions was known as the Play Fairway Analysis. This was a $15 million project funded
by taxpayer dollars.1
[6] The applicant received four responses to his access to information request2 in two batches.
Batch #1 consisted of slightly more than 2500 pages. Batch #2 consisted of about 3700 pages for
a total of 6200 responsive pages. In addition, our investigation has identified 127 missing
records – the number of pages is unknown.
1 Nova Scotia Department of Energy and Mines: Oil and Gas, Offshore, “Play Fairway Analysis Atlas: The
Analysis” (online: https://energy.novascotia.ca/oil-and-gas/offshore/play-fairway-analysis/analysis); OETR
Association, “OETR Association Play Fairway Program: Using geoscience to revitalise interest in exploring Nova
Scotia’s Offshore.” GSEG Recorder, Vol. 34 No. 7, September 2009 (online:
https://csegrecorder.com/articles/view/oetr-association-play-fairway-program). 2 During the informal resolution process, the applicant made a second access to information request related to the
batch #1 records in order to gain access to records to which ss. 14 and 17 no longer applied because of the passage
of time. Although the Department removed some severing in an effort to resolve some issues informally, it declined
to revisit severing on the basis of passage of time and so the applicant was required to file a new request for the
same records. This decision required the Department to reprocess the batch #1 records twice.
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[7] The request was processed by a number of different individuals over a five year period. In
addition, it appears that the large volume of records clearly created significant challenges for the
Department in terms of consistency and timeliness.
Burden of proof
[8] Usually it is the Department who bears the burden of proving that the applicant has no right
of access to a record. However, where the information being withheld is the personal
information of people other than the applicant (s. 20), the applicant bears the burden of proof.3
Where the Department relies on s. 21, it bears the burden of proof except where the third party
files the request for review.4 Generally, the third party must produce evidence of harm for s. 21
to apply because public bodies are simply not in a position to satisfy their burden of proof
regarding s. 21 without evidence from the third party.
Duty to assist and timeliness
[9] The first four issues relate to the Department’s duty to assist set out in s. 7 of FOIPOP and
its timeliness in responding to the access to information request:
i. Were the Department’s decision letters open, accurate and complete as required by s.
7(1)(a) of FOIPOP?
ii. Did the Department meet its duty to assist the applicant by conducting an adequate
search for records as required by s. 7(1)(a) of FOIPOP?
iii. Did the Department comply with the statutory timelines to respond to an access request
as required by section 7(2) of FOIPOP when it placed the application on hold?
iv. Were the time extensions taken by the Department authorized under s. 9 of FOIPOP?
[10] Section 7 provides that public bodies must “make every reasonable effort to assist the
applicant and to respond without delay, openly, accurately and completely”. This provision goes
to the heart of the purposes of access to information law.
[11] Time is of the essence in responding to an access to information request and two further
provisions set out rules specific to response times. Section 7(2) specifies that the public body
must respond within 30 days of receipt of the request and s. 9 provides limited circumstances
under which this time may be extended.
[12] In meeting the duty to assist, the law requires that the Department make “every reasonable
effort”. The duty to assist exists to ensure that public bodies make a timely, positive, thorough
and fulsome effort to respond to applicants in a manner that results in accountability and
transparency. Is that an accurate description of the Department’s efforts here? The applicant
asserts that the effort was a reluctant, desultory, minimal one that lead to increasing frustration
on the part of applicant and a belief that the Department was intentionally hiding information.
3 FOIPOP s. 45. 4 Under s. 45(3)(b) of FOIPOP, the third party bears the burden of proof at a review or appeal into a decision to give
an applicant access to all or part of a record containing information that relates to a third party. In this case, the
Department determined that it would deny access to the record it says contains information that relates to a third
party. Therefore, the burden is on the Department to establish that s. 21 was properly applied.
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[13] There are four elements included in the duty to assist.
1. Without delay: Section 7 emphasizes that the timeline for response is “without delay”
meaning that while the maximum permitted time is 30 days, in fact, public bodies must
respond as soon as possible to a maximum of 30 days or longer with permitted extensions. In
order to meet this requirement, public bodies must make every reasonable effort. This
includes ensuring that there is adequate staff to fulfill this statutory obligation.5 Any time a
public body takes a time extension or places a file on hold it must be in compliance with
FOIPOP.
2. Open: There are numerous elements to openness including:
• Interpreting the access to information request in a fair, reasonable, open and flexible
manner.6 Public bodies should avoid narrow interpretations and resolve any
ambiguity in favour of the applicant.
• Communicating with the applicant to explain the steps in the process and to obtain
necessary clarifications as to the nature and scope of the request.7
• Conducting a reasonable search to find all records responsive to the request.8 If
responsive records are not found, openness requires that public bodies provide an
explanation to the applicant for why no records were found.9
• Applying the principle that all information in the custody or control of the public
body must be released unless a specific and limited exemption applies.10 Openness
requires that only information subject to an authorized exemption must be severed so
that the applicant receives as much information as possible.
• Any responses to the applicant must be open. In other words, the responsive records
must be clearly marked to indicate where and why information has been withheld.
• Response packages, especially large packages, must have page numbers so that if the
applicant has questions he or she can easily communicate with the public body about
the pages of concern. This promotes open and clear communication.
• Explanations in response letters, fee letters and time extension notifications must all
be clear and must provide comprehensible, thorough explanations for the decision the
public body is making. Such responses promote transparency and support a
meaningful right to access government information. Section 7(2) of FOIPOP
provides further detail on information that must be provided to the applicant in
response to an access to information request.
5 The Assistant Commissioner in Newfoundland made a similar finding in NL Review Report A-2011-010 2011
CanLII 47545 (NL IPC) at para 34. 6 See NS Review Report 16-05 2016 NSOIPC 5 (CanLII) at para 40 for a list of best practices when interpreting
access to information requests and for deciding how to determine whether further particulars are required. 7 See OIPC Guidelines for Public Bodies and Municipalities, “Duty to Assist #1: Communication with Applicants”
(online: https://oipc.novascotia.ca/sites/default/files/publications/18-00070%20Duty%20to%20Assist%201%20-
%20Comm%20w%20App%20Guidelines%20Final%20%2823%20Jan%2019%29.pdf). 8 See OIPC Guidelines for Public Bodies and Municipalities, “Duty to Assist #2: Conducting an Adequate Search”
(online: https://oipc.novascotia.ca/sites/default/files/publications/18-
00070%20Search%20Guidelines%20%282019%2002%2025%29.pdf). 9 See also Audit & Compliance Report F18-02 City of White Rock, Duty to Assist 2018 BCIPC 52 (CanLII) at para
2.3.2 (online: https://www.oipc.bc.ca/audit-and-compliance-reports/2260). 10 Consistent with s. 5(2) of FOIPOP which permits public bodies to withhold information “exempted from
disclosure pursuant to this Act.”
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3. Accurate: An accurate response requires that a public body:
• Completes a line-by-line review of all responsive records and only applies
exemptions where the evidence available supports the application of the exemption.
• Discloses the full scope of the responsive records even if some of the records are
withheld in full. It should be clear to the applicant how many responsive records
there are, how many (if any) have been withheld, and for what reason.11
• Ensures that any explanations for decisions made are accurate. Explanations for
delay, explanations for fee calculations, third party notices and explanations for why
information has been withheld must all be accurate and must all comply with the law.
4. Complete: A complete response includes the following:
• All responsive records are accounted for. If, for example, the public body finds 700
responsive pages but withholds 250 pages under s. 17, the applicant should be able to
tell from the package received that there are in total 700 responsive pages but that 250
have been wholly withheld under s. 17.
• The response package is organized in a way that the applicant can tell where
information has been withheld. So, for example, if an email includes a 15 page
PowerPoint presentation attachment that is withheld, the applicant’s package should
include a page immediately following the email that indicates that the 15 page
attachment to the preceding email has been withheld and the statutory provision under
which this decision was made.
• If the records include emails, a complete response would include all attachments to
each email.
• All explanations given to the applicant must also be complete. So, for example, all
reasons for withholding information under the law must be noted, all fee calculations
must be complete and all explanations for delay must be complete.
• The applicant receives all notices to which he or she is entitled under the law. So, for
example, if third party notices have been given, the law requires that public bodies
provide the applicant with initial notice of the decision to consult with third parties
and a second notice of the decision of the public body with respect to third party
information.12
[14] The communications between the applicant and the Department revealed from the outset
that the relationship between the two was strained. The applicant clearly had no trust in the
Department. His access to information request included a request for fee waiver because he said
his request was an “investigation of crimes” presumably committed by the Department. The
Department accused the applicant of having an “insulting and abusive tone”. This was a difficult
start to a challenging request.
11 This obligation is supported by s. 7(2)(a)(ii) which requires that public bodies provide a written explanation to
applicants where access to a record or part of a record is refused by a public body and that such explanation include
the reasons for the refusal and the provision of FOIPOP on which the refusal is based. 12 Sections 22 and 23 of FOIPOP set out the process for giving third party notices. See also OIPC Guidelines for
Public Bodies and Municipalities, “Duty to Assist #3: Third Party Notice” (online: https://oipc.novascotia.ca/sites/default/files/publications/18-00192%20Duty%20to%20Assist%20-
%20Third%20Party%20Notice%20Guide%20%282019%20March%29.pdf).
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i. Were the Department’s decision letters open, accurate and complete as required by s.
7(1)(a) of FOIPOP?
[15] Decision letters to the applicant were the primary means by which the Department
communicated with the applicant. The evidence provided by the Department itself reveals that
the Department failed to communicate openly, accurately or completely as required by s. 7(1)(a)
of FOIPOP. The list of failures is long and can be summarized as follows:
General communication inadequacies
[16] The Department failed to communicate openly, accurately and completely resulting in
lengthy delays and in a failure to address issues raised by the applicant.
• Applicant was not provided with third party notification letters as required by s. 23.
• Response letters to the applicant are either missing mandatory notification of the right
to appeal or public body contact information – both essential elements and required
by s. 7(2) of FOIPOP.
• The Department claims that the information access and privacy (IAP) administrators
who processed the request made frequent contact with the applicant. However, a
careful review of the correspondence reveals that no meaningful attempt was made to
narrow the request to reduce fees which the applicant clearly objected to. The result
was a lengthy delay in the processing of batch #2 which only occurred with the
intervention of Office of the Information and Privacy Commissioner (OIPC)
investigators.
• On January 5, 2015, the Department issued a large fee estimate to the applicant in
relation to batch #2. That letter had no deadline and the Department closed the file
without communicating with the applicant even though the applicant had filed a
request for review in relation to the fee on March 13, 2015 prior to the file being
closed by the Department.
• On two occasions, the Department advised the applicant that the time for processing
had been extended to a date that depended on the OIPC approving such a time
extension. On both occasions the time extension was not approved by the OIPC, but
the Department never told the applicant that the extension had been denied and
further, acted as if, in fact, it had been approved.
Full documents withheld without notice
[17] Evidence gathered during the review process revealed that full documents were withheld
without notice to the applicant.
• On March 30, 2015, the Department withheld numerous whole documents in batch
#1. The applicant was provided with a one-sided, single page list of withheld
documents in the original batch #1 response package. On July 2, 2019, more than
four years later, the Department advised the OIPC that the list was actually two-sided
and so the applicant had never received notice of a further 359 pages that had been
wholly withheld (for a total of 934 withheld pages).
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No longer relevant
[18] During the informal review process it came to light that the Department had withheld
information as “no longer relevant” but had never advised the applicant of this decision.
• On July 4, 2019, more than four years after the appeal was filed with the OIPC, the
Department provided the OIPC with a further 832 pages that had been included in the
original fee paid by the applicant but removed from batch #1 for a variety or reasons.
A total of, 785 pages were removed as “no longer relevant” or “reviewed”. The
applicant never received notice of this decision nor had his fee been refunded for the
removed pages.
• The pages removed as no longer relevant or “reviewed” consist of clearly relevant
email exchanges on similar or identical topics as were already included in the original
two batches of records, duplicates of documents disclosed to the applicant elsewhere,
email exchanges with RPS or in relation to RPS. There are only a few records within
this group that can reasonably be classified as not relevant to the request. The
remainder, based on the Department’s approach, are clearly relevant.
• Included in the 832 pages are 58 pages withheld under an exemption. My comments
on the application of the various exemptions set out below apply to these pages.
Information withheld without claiming an exemption
[19] Section 7(2)(a)(ii) of FOIPOP requires that when access to a record or part of a record is
refused, the reasons for the refusal and the provision of the Act on which the refusal is based
must be communicated to the applicant. The Department failed to do so as follows:
• The Department severed information on six pages of batch #213 without claiming an
exemption.
[20] In summary then, the Department:
• failed to comply with mandatory notifications to the applicant;
• withheld hundreds of pages of records without notifying the applicant of the reason
for removal and for many, the very existence of the records;
• removed responsive records from the original response without notice (and despite
charging a fee for processing the records); and
• withheld some information for no apparent reason under the law.
[21] Finding #1: On that basis, I have no hesitation in finding that the Department’s decision
letters and communications generally with the applicant were not open, accurate or complete as
required by s. 7(1)(a) of FOIPOP.
ii. Did the Department meet its duty to assist the applicant by conducting an adequate
search for records as required by s. 7(1)(a) of FOIPOP?
[22] The responses provided by the Department are missing over one hundred responsive
records, including 78 unprocessed email attachments. The evidence of this is the records
themselves which show that the responsive emails had attachments. No exemption was applied
to the attachments and despite repeated requests these attachments have never been produced to
13 Pages 2657, 2668, 2671, 2685, 2847 and 2849.
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this office for review. The applicant was never advised of the number of pages of attachments
simply missing from the response.
[23] In addition to the unprocessed e-mail attachments, the responses contain numerous e-mails,
meeting minutes and meeting agendas that are records of discussions about files, documents,
presentations and other records that appear to be responsive to the applicant’s request. Although
it appears that some of these records may have been withheld in full, it is not clear from the
Department’s response. Furthermore, it appears that the Department did not search for many of
these records because the Department initially took a narrow interpretation of the applicant’s
request and therefore overlooked numerous types of records related to the project. OIPC
investigators identified 127 documents missing from the responses. I will provide the
Department with a complete list of the missing documents.
[24] Also, it was not until July 4, 2019, almost five years after the original access to information
request, that the Department discovered that it had withheld an additional 832 pages, most as “no
longer relevant”. It is unclear when this decision was made. This may have been a failure to
conduct an adequate search or it may have been a failure to respond openly, accurately and
completely. In either case, it was not in compliance with the law.
[25] The Department initially did not produce the missing attachments. This is clear from its
fee estimates which indicate that staff processing the request were aware the attachments existed
and that they had not been produced.14 Since March 2018, OIPC staff attempted repeatedly to
get the Department to produce the attachments and other missing documents. The Department
produced a small number (104 pages) of attachments as part of the batch #1 version #2 release
on June 19, 2018. The Department has not produced any further missing records. As noted
above, our review of the response package indicates that there are at least 127 documents
missing from the record.
[26] An adequate search requires that a public body make every reasonable effort to find
responsive records. In this case, the Department knows there are missing records, knows where
they are, has been repeatedly asked to produce those records and has failed to do so. The
Department’s responses to the applicant were incomplete with hundreds of pages missing.
Additionally, the Department did not notify the applicant of the missing pages.
[27] Finding #2: I find that the Department failed to conduct an adequate search in violation of
the duty to assist in s. 7(1)(a) of FOIPOP.
iii. Did the Department comply with the statutory timelines to respond to an access to
information request as required by section 7(2) of FOIPOP when it placed the
application on hold?
[28] The Department made significant time errors in the form of unauthorized “on-hold” time,
unauthorized time extensions, unauthorized delays and late responses. In the end, the
Department took 4.5 years to process this request.
14 The Department provided the OIPC with a summary of how the initial fee estimate was calculated on January 30,
2018. Included in the breakdown is an acknowledgement that “Attachments not processed, number of pages not yet
identified”.
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[29] On October 16, 2014, the Department claims that it put the request on hold for
clarification. There are only two statutory permissions for on-hold time – when the applicant
fails to provide sufficient particulars to allow an individual familiar with the subject matter to
identify the record or for payment of any fee. The letter dated October 16, 2014 was not a
request for clarification. It was a request that the applicant narrow the scope of his request. The
Department was clear in the letter that the problem it identified with the request was that it would
“likely result in a substantial number of records”. Further, it is clear the Department required no
clarification to identify responsive records because it got none yet it still processed the request.
[30] In response to the October 16, 2014 letter, the applicant provided a sarcastic dictionary
definition of each of the original words of his original request. At the time, the individual tasked
with processing the request acknowledged in an email to this office dated January 8, 2015, “We
reactivated the application on October 31, 2014 when the applicant confirmed that he would not
provide further clarification.”
[31] Interestingly, the Department asserts in its first submission to this office that the October
16, 2014 letter was a request for clarification. It characterized the applicant’s sarcastic response
as a clarification. In its second submission to this office discussing fees, the Department asserts
that the October 16, 2014 letter was an attempt “to focus the applicant’s request in order to assist
the Applicant and avoid fees.” To use an aphorism, the Department cannot have its cake and eat
it too. Either it believes the request was a clarification or it believes its request was an attempt to
narrow the scope – it is not both. The evidence clearly supports that the Department did not
want to have to process such a large request and so wanted the applicant to narrow his focus.
There’s nothing wrong with that, but such an effort does not mean that the applicant provided
insufficient particulars to allow the public body to identify responsive records and so no
clarification was required and most importantly, the Department could not put the request on
hold.
[32] Finding #3: I find that the on-hold time taken between October 16 and October 31, 2014
was not authorized under ss. 7(2) and 6(b) of FOIPOP. The response was therefore due on
November 22, 2014.15 As a result, the Department was out of time when it purported to extend
the time to respond to the access to information request due to a large volume of records and to
consult with third parties on November 24, 2014.
iv. Were the time extensions taken by the Department authorized under s. 9 of FOIPOP?
[33] The Department took a number of time extensions in relation to the two batches of records.
In most cases, the Department cited s. 9 of FOIPOP as authority for the extensions. In one case,
it simply restarted the clock for itself.
15 The Department says that the request dated September 26, 2014 was not received until October 7, 2014. The
original due date was therefore November 6, 2014. The Department issued a fee on November 5, 2014 when it had
one day left to process the request. This put the request on hold. The Department advised that it received the fee
deposit dated November 18, 2014 on November 21, 2014. This reactivated the request and so the new due date was
November 22, 2014. The Department then attempted to extend the time for processing the request on November 24,
2014 but time had, by then, already expired.
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Batch #1 records
[34] On November 24, 2014, the Department attempted to take a 30 day time extension to
consult with third parties about the batch #1 records. However, because the first on-hold time
was not authorized, the request was due on November 22, 2014. So, time could not be extended
on November 24, 2014. A further concern with this attempted time extension is that the third
party consultations did not begin until February 10, 2015 – three months later, and was
completed by March 5, 2015 when consent to disclosure was received by all third parties.
Taking three months to conduct third party consultations is not compliant with the duty to act
without delay.
[35] On January 5, 2015, the Department advised the applicant that the new date for batch #1
was March 9, 2015, based on an application to the OIPC for a time extension. That extension
was not granted. Despite this, the Department never informed the applicant of the time extension
denial and in fact, failed to meet its own due date as noted below.
Batch #2 records
[36] On January 5, 2015, the Department issued a second fee estimate, this one in relation to the
batch #2 records consisting of about 3000 pages. The applicant did not pay the fee estimate but
instead, filed a review with the OIPC. The Department simply closed his file on May 19, 2015
with no further communication on the topic until the OIPC began the review process in October
2017.
[37] As a result of the OIPC’s intervention, the applicant narrowed his request on February 16,
2018. The Department issued a new fee estimate for the batch #2 records and the applicant paid
a deposit on April 20, 2018. On April 26, 2018, the Department purported to open a “new
request”. It is unclear on what basis a new request could have been created since the narrowing
was communicated on February 13, 2018 (not April 26, 2018) and was, in any event, part of the
processing of the original October 7, 2014 request. FOIPOP provides that public bodies must
respond “within thirty days after the application is received”. April 26, 2018 was not the date
the request was received. The request was received October 7, 2014 and was due November 22,
2014. The only other possible “received” date would have been February 13, 2018 – the date the
narrowed request was communicated to the Department. There is no authority under FOIPOP
for public bodies to randomly select a new “received” date in order to reset the 30 day clock.
[38] On May 17, 2018, the Department then gave itself a time extension on the new request
date citing a large volume of records. On June 26, 2018, the Department requested a further time
extension from the OIPC which the OIPC did not grant because the OIPC did not agree that the
processing of the second batch of records constituted a new access request. At best the
Department should have used February 13, 2018 as the start date since this was when the
applicant redefined his request. Despite not being authorized to extend the time by the OIPC, the
Department gave itself 90 additional days to process the request and communicated a new due
date of September 24, 2018 to the applicant. As noted below, the Department did not meet its
own timelines and did not provide a copy of the batch #2 records until five months after its own
unauthorized due date.
12
[39] The Department advised the applicant on June 26, 2018 that it was seeking a further time
extension in order to conduct third party consultations on the batch #2 records. The Department
never conducted third party consultations on batch #2.
[40] The Department also effectively took additional time extensions in the form of
unauthorized delays and late responses.
Unauthorized delays
[41] By March 6, 2015, the Department had consent to disclose the records at issue in batch #1
from all third parties. Despite this, the Department notified the applicant that it intended to await
the 20 day appeal period for third parties.16 Pursuant to s. 23(4), the Department had no need to
delay its response because it had third party consent.
Late responses
[42] The Department was late in responding to the applicant’s request even using the
Department’s self-selected dates.
• The first set of responsive records for batch #1 was not released until March 30, 2015,
four months late. The actual due date was November 22, 2014.
• The applicant paid the fee deposit on batch #2 of the response on April 26, 2018. Even
using the Department’s calculation (which was inaccurate), batch# 2 was due to the
applicant on June 25, 2018 (since the OIPC time extension was not granted). Batch # 2
was not released until February 13, 2019, one year after the request was narrowed, eight
months late by the Department’s calculations and 4 ½ years after the original request was
made.
[43] Finding #4: I find that the time extensions taken by the Department on November 24,
2014, January 5, 2015, April 26, 2018, May 17, 2018 and June 26, 2018 were not authorized
under s. 9 of FOIPOP. Further, I find that the time extensions the Department granted itself in
the form of the new “received” date, unauthorized delays and late responses were also not
authorized under FOIPOP.
v. Were the fees charged for the first release calculated accurately and in compliance with
the requirements of s. 11 of FOIPOP?
[44] The fifth issue raised by the applicant is in relation to the fee charged originally on
November 5, 2014. On that day, the Department issued a fee estimate of $1270 in response to
the applicant’s access to information request. The applicant paid a fee deposit of $635 on
November 21, 2014. Prior to releasing the first batch of records the applicant paid an additional
$355 for a total of $990. The applicant objects to this fee. The applicant also objects to the fees
for the second batch, which the Department ultimately refunded during the informal resolution
process of the review.
[45] FOIPOP provides fairly detailed guidance on how to calculate a fee. The first rule of fee
calculation is that the chargeable fee is the lesser of the actual cost of processing the request and
the fee estimate based on the guidelines in the Regulations.17 This means that in order to
16 Section 23(3) of FOIPOP. 17 Freedom of Information and Protection of Privacy Regulations, s. 6(2).
13
accurately calculate a fee, public bodies must keep track of the hours spent actually processing
the request and of actual photocopying costs so that they can calculate an actual fee and compare
it to the fee estimate they prepare before beginning the processing of a request.
[46] So for example, the Regulations, written 25 years ago, allow a public body to charge up to
20 cents per page for photocopying. Photocopying was significantly more expense 25 years ago.
The actual cost for photocopying a page today is more realistically in the range of 3 cents per
page.18 Public bodies are permitted to charge a maximum of $30 per hour for a person to locate,
retrieve and prepare a record. Thirty dollars per hour translates into about $55,000 per year. So,
depending on who did the work, the $30 may be an accurate maximum charge or the actual cost
may be lower.
[47] The Department did not keep track of the actual cost of processing the request. There is no
record of the actual cost of copying or of the actual number of hours spent performing the tasks
associated with processing the request. The final fee, according to the calculations provided by
the Department, was clearly based only on the estimate. The Department provided no evidence
that the estimate was less than the actual cost of processing the request.
[48] Another issue with the fees is that the Department’s math doesn’t add up. In its
submissions, it insists that it processed in excess of 3000 pages, yet the applicant only had to pay
$990. However, in January 2018, the Department provided a detailed list of calculations for the
fee. Included in that calculation was a list of the number of pages the Department said it actually
processed broken down by staff member. The “processed” records included records that were
partially disclosed to the applicant and records that were withheld. The total number of pages
“processed” as provided by the Department was 1198. Using this number, for the sake of
argument, the original fee should have been $750 not $990.19
[49] This of course does not solve the more significant problem that the Department never kept
a record of the actual cost of processing. Was it more or less than $750? The law is mandatory
and states clearly, “fees payable for services under the Act shall be the actual costs to the public
body” up to the maximum amounts set out in the Regulations.20
[50] This is, without question, a case where the Department has made so many errors and was
so late in its response to this applicant that one obvious remedy is that the Department refund any
fee paid. Nova Scotia’s law is quite outdated and does not include a provision other laws have
that provides that an appropriate remedy where the public body is late in responding to a request
is to order the refunding of the fee.21 However, our law does provide that I can make any
18 This is the cost the OIPC pays per page including the cost of paper, the per page copy cost and the copier leasing
costs. See OIPC Guidelines for Public Bodies and Municipalities, “Duty to Assist #4: How to Calculate Fees”.
(online: https://oipc.novascotia.ca/sites/default/files/publications/19-
00109%20Fees%20Guidelines%20%282019%20July%2025%29.pdf). 19 Location and retrieval $60, review and sever .75 X 1198 = 899 minutes, 899 minutes = 15 hours x $30 per hour =
$450, photocopy 1198 x .2 = $240, so the total = $60 + $450 + $240 = $750. 20 Freedom of Information and Protection of Privacy Regulations, s. 6(2) and 6(3). 21 See for example British Columbia’s Freedom of Information and Protection of Privacy Act, s. 58(3)(c).
14
recommendations with respect to a matter under review that I consider appropriate.22 I will do so
below.
[51] Finding #5: I find that the Department’s fee for batch #1 was not authorized because it
was not calculated in compliance with s. 11 of FOIPOP and s. 6 of the Regulations.
Exemptions to disclosure
[52] The remaining six issues all deal with the various reasons given by the Department for
withholding information from the record.
[53] As a preliminary comment, the Department’s submissions characterize the Department’s
application of exemptions as “properly exercising discretion”. This is an indication of the
underlying problem with the Department’s approach to applying FOIPOP. That is, the first step
is not a discretionary one. The first step is to determine whether or not there is evidence to
support that a limited and specific exemption under FOIPOP applies to any portion of the record.
This is not a discretionary exercise. It is an exercise in applying the law to the record. It is only
if the legal test is met that discretion factors into the equation and then, of course, only if the
applicable exemption is a discretionary one.
[54] This is a significant point because if public bodies think that they are exercising discretion
in applying the law, they are misapprehending the fundamental purpose of the law. As I noted in
Review Report 19-05:
It is important to recall the basis for right to know legislation. Prior to the enactment of
the Freedom of Information and Protection of Privacy Act, government officials decided
what information would be disclosed and even if information would be disclosed. In
other words, disclosure of information to citizens was entirely discretionary and often
arbitrary. This was the problem access to information legislation was intended to remedy.
Donald C. Rowat explained the problem this way: “Public officials are too used to the old
system of discretionary secrecy under which they arbitrarily withheld information for
their own convenience or for fear of disapproval by their superiors and will not change
their ways unless they are required by law to do so.”23
vi. Is the Department authorized to refuse access to information under s. 13 of FOIPOP
because disclosure of the information would reveal the substance of deliberations of the
Executive Council or any of its committees?
[55] The Department applied s. 13 to a small amount of information related to the Treasury
Board on pages 260-263 of batch #1. The Treasury Board qualifies as one of the Executive
Council’s committees. Most of the withheld information can accurately be characterized as
revealing advice submitted to the Treasury Board within the meaning of s. 13.
[56] Finding #6: I find that s. 13 was appropriately applied on pages 261-262 of batch #1. On
page 263, the Department’s application of s. 13 was overbroad.
22 FOIPOP s. 39(2). 23 NS Review Report 19-05 2019 NSOIPC 6 (CanLII) at para 25.
15
vii. Is the Department authorized to refuse access to information under s. 14 of FOIPOP
because disclosure of the information would reveal advice or recommendations?
[57] Under s. 14(1), a public body may withhold information if the information would reveal
advice or recommendations developed by or for a public body or minister. Under s. 14(2), a
public body cannot withhold background information under s. 14 and under s. 14(3), a public
body cannot withhold information under s. 14(1) if the record has been in existence for five or
more years.
[58] The applicant’s access to information request was dated September 26, 2014.
[59] Four factual observations with respect to the application of s. 14 are:
• The Department applied s. 14 to anything that appeared to be a draft, usually by
withholding the whole document as if s. 14 was synonymous with “draft” and as if
the mandatory requirement that information be severed did not exist.
• The Department applied s. 14 to information that even on a cursory examination it
could not apply to, such as the name of contractors.
• The Department’s application of s. 14 was inconsistent. The Department released
batch #1 three times and appeared not to have looked back to see what it had done
before. Very frequently, information is both fully released and fully withheld under s.
14 on the same documents in different releases. Further, there are duplicates of batch
#1 records in batch #2. Sometimes s. 14 is applied in batch #1 but not batch #2 and
sometimes vice versa. The end result is that much of the information withheld under
s. 14 is released somewhere in the thousands of pages of records.
• All of the information withheld under s. 14 is now more than five years old.
[60] Finding #7: I find that s. 14(3) now applies to all of the information withheld under s.
14(1) and so s. 14 cannot apply to the records at issue.
[61] Public bodies in Nova Scotia frequently argue that the law should be applied as it applied
when the original decision was made, not when the review is conducted. In this case, the due
date for this request was a moveable one from the Department’s perspective. As noted above,
through a series of unauthorized on-hold periods, unnecessary appeal periods, and by creating a
“new request” to restart the 30 day clock, the Department did not commit to any firm date. It
failed to meet the statutory timeline and indeed failed to meet its own calculated timelines. In
addition, I have found that the Department failed to satisfy its duty to assist in numerous ways.
[62] One of the remedies to this problem would be for the Department to not make the applicant
jump through further administrative hoops. By that I mean this applicant could now make a new
access request for all information withheld under s. 14. Section 14 would not apply. Instead of
making the applicant take the initiative, it would be a step toward remediating the failure to assist
if the Department would now simply release all of the records withheld or severed under s. 14.
16
viii. Is the Department authorized to refuse access to information under s. 17 of FOIPOP
because disclosure of the information could reasonably be expected to harm the economic
interests of the public body?
[63] Section 17 is a harms-based exemption. The Department bears the burden of proving that
disclosure could reasonably be expected to harm the economic interests of the public body. In
this case, the Department provided no evidence whatsoever in support of its assertion that harm
would result from disclosure. Instead, the Department cited a few cases setting out the test under
s. 17 and then as “evidence” restated the words of the section and said it therefore applied to the
records. The submissions specifically state that the records are too voluminous to address
individual severing. The submissions make no reference at all to any particular type of
information withheld under s. 17, provide no explanation for why s. 17 might apply to those
information types and provide no explanation for what possible harm could come from the
disclosure.
[64] Two factual observations about the manner in which s. 17 was applied to the records are:
• Section 17 is applied to information that even on a cursory review it clearly and without
question cannot apply to. I include in this category company names, government entity
names, names of individuals and names of wells.
• The Department’s application of s. 17 is inconsistent. Frequently s. 17 is applied to any
monetary amounts. Because there are multiple copies of most documents, particularly
email strings, virtually every number withheld under s. 17 is disclosed somewhere else in
the documentation. It is impossible to see how harm could arise from the disclosure of
information when the information has already been disclosed and it seems the
Department never noticed. How can the Department prove that there is a reasonable
expectation of harm from disclosure when it repeatedly discloses information and asserts
no consequent harm from the disclosure?
[65] Finding #8: I find that the Department has failed to satisfy its burden of proving that s. 17
applies to any of the information withheld under this provision.
ix. Is the Department required to refuse access to information under s. 20 of FOIPOP
because disclosure of the information would be an unreasonable invasion of a third party’s
personal privacy?
[66] Public bodies in Nova Scotia are challenged by the right to privacy set out in FOIPOP.
They are fearful that in releasing a name, they are violating privacy. Almost 20 years ago the
Nova Scotia Supreme Court laid out a four-step approach to be taken in determining whether or
not releasing personal information, including names, is permitted in response to an access to
information request.24 Unfortunately, rather than applying this four-step test, most public bodies
instead simply sever every name they see in responsive records. This practice is colloquially
referred to as “see a name, take a name”. That appears to have been what happened here. If the
name was not of a Departmental employee, it was removed. The problem with this practice is
that it does not comply with the law.
[67] The right to privacy under s. 20 is that third party information must be withheld only if the
disclosure of that information would be an unreasonable invasion of personal privacy. The Nova 24 House (Re), 2000 CanLII 20401 (NS SC), at para 14.
17
Scotia Supreme Court set out a four-part test to determine when release of information would
result in an unreasonable invasion of personal privacy under FOIPOP:
i. Is the requested information “personal information” within the meaning of s. 3(1)(i)? If
not, that is the end. Otherwise, I must go on.
ii. Are any of the conditions of s. 20(4) satisfied? If so, that is the end.
iii. Is the personal information presumed to be an unreasonable invasion of privacy pursuant
to s. 20(3)?
iv. In light of any s. 20(3) presumption, and in light of the burden upon the applicant
established by s. 45(2), does the balancing of all relevant circumstances, including those
listed in s. 20(2), lead to the conclusion that disclosure would constitute an unreasonable
invasion of privacy or not?
[68] I have previously discussed the application of s. 20 to the identity of individuals in their
business capacity.25 In the current case, almost all of the individuals whose names are severed
under s. 20 are conducting work under a contract to provide service to Nova Scotia or as part of
the team working to guide the Play Fair analysis led by the Department. All of the
correspondence in the records is highly professional, focussed on applying expertise to issues
that these individuals were hired to evaluate. The work they are doing is on behalf of the
Province. With perhaps two or three very minor exceptions, the conversations are focussed
strictly on work.
[69] The names of individuals are clearly personal information. I agree with the Department
that nothing in s. 20(4) applies to these names. I disagree with the Department when it asserts
that two presumptions – s. 20(3)(d) and s. 20(3)(f) apply to this information. The law states:
20(3) A disclosure of personal information is presumed to be an unreasonable invasion of
a third party’s personal privacy if:
(d) the personal information relates to employment or educational history; and
(f) the personal information describes the third party’s finances, income, assets,
liabilities, net worth, bank balances, financial history or activities, or
creditworthiness.
[70] This discussion relates only to the withholding of names of individuals in a business
capacity. The Department did not identify what record it thought s. 20(3)(f) applied to. It
certainly does not apply to the names as they appear in the responsive records.
[71] With respect to s. 20(3)(d), I have previously examined the issue of whether or not this
provision applies to names that appear in a business context. I pointed out that jurisdictions
across Canada have determined that disclosure of names in this context is not an unreasonable
invasion of personal privacy because such information lacks a distinctly personal dimension. In
25 See for example NS Review Report FI-12-01 2015 CanLII 54096 (NS FOIPOP).
18
some jurisdictions, the courts have determined that this type of information does not even qualify
as personal information because it is not “about” an individual.26
[72] Further, the Nova Scotia Court of Appeal had this to say about the proper interpretation of
the term “employment history”:
[36] In order to be found to be employment or educational history, the information must
do more than simply have some sort of link to employment or education. The words
“employment and educational” are not nouns, but adjectives which describe the word
“history”. The presumption against disclosure will only arise if the information relates to
“employment or educational history” in the fuller sense set out in the jurisprudence.27
[73] Names that appear in the record of work performed under contract with the Province is
simply a link to employment and consistent with the decision of the Court of Appeal, do not
qualify as employment history. I find that s. 20(3)(d) does not apply.
[74] This leaves the final question: would the disclosure constitute an unreasonable invasion of
personal privacy? There are three relevant considerations. The disclosure of the information is
desirable for the purposes of subjecting the activities of the public body to scrutiny. That is,
these individuals used their expertise to perform tasks and to make recommendations and
decisions that have significant financial implications in terms of the potential value of
hydrocarbon resources in Nova Scotia waters. As noted earlier, significant public funds were
dedicated to support this project and the outcome of the project also had significant potential
public benefit in the form of potential revenue.28 This factor favours disclosure.
[75] A second consideration is that the names are supplied strictly in a work context. The
information associated with the names is professional and work-oriented. There is no reason to
believe that the individuals had any expectation of privacy in this context. Certainly, the
Department offered no argument or evidence that this was the case.
[76] The final consideration is that in numerous cases the names of individuals withheld on
some occasions are disclosed elsewhere. I counted at least 17 different individuals whose names
are sometimes withheld and sometimes disclosed. Included in the 17 were the three or four
individuals whose names appear throughout the correspondence. To say that sometimes the
disclosure of the names is an unreasonable invasion of personal privacy and sometimes not in the
context of these records makes no sense.
[77] The Department also applied s. 20 to information that is clearly not personal information,
such as the names of companies. Obviously, that was an error and s. 20 cannot and does not
apply to such information.
26 For a complete discussion of these two points see NS Review Report 16-10 2016 NSOIPC 10 (CanLII), at paras
96 – 101. 27 A.B. v. Griffiths, 2009 NSCA 48 (CanLII), at para 36. 28 Nova Scotia Department of Energy and Mines: Oil and Gas, Offshore, “Play Fairway Analysis Atlas: The
Analysis” (online: https://energy.novascotia.ca/oil-and-gas/offshore/play-fairway-analysis/analysis).
19
[78] There were a couple of occasions where s. 20 was properly applied. In one instance there
is a brief discussion relating to a child’s school and on another occasion the identity of an access
to information applicant was withheld under s. 20. Both were appropriate applications of s. 20.
[79] Finding #9: I find that the disclosure of the names of individuals provided strictly in a
business context would not result in an unreasonable invasion of the personal privacy of any of
these individuals.
x. Is the Department required to refuse access to information under s. 21 of FOIPOP
because disclosure of the information could reasonably be expected to be harmful to the
business interests of a third party?
[80] The Department bears the burden of proving that s. 21 has been properly applied to the
record. To do so, it must prove that all three parts of the s. 21 test have been satisfied:
1. The disclosure of the requested information would reveal trade secrets or commercial,
financial, labour relations or technical information of a third party;
2. The information in question was supplied implicitly or explicitly in confidence; and
3. The disclosure of the requested information could reasonably be expected to cause one
or more of the harms enumerated in s. 21(1)(c).
[81] The Department took the position that it is the third party who bears the burden of proof
that s. 21 was properly applied. This is incorrect. Section 45(3) provides that the burden of
proof shifts to the third party only where the review is into a decision to give an applicant access
to all or part of a record containing information that relates to the third party. In this case, the
appeal is of a decision to not give access. In other words, the Department agreed that s. 21
applied. This was not a third party appeal. Therefore, the Department bears the burden of proof
to establish that s. 21 was properly applied. The Department provided no evidence to support the
application of s. 21 except the following statement: “The Department believes the disclosure
could have harmed the competitive position of the third party and result (sic) in undue financial
loss or gain.” The right to access government information is a quasi-constitutional right.29 Any
abrogation of that right must be in accordance with the limited and specific exemptions set out in
FOIPOP and must be evidence-based. Clearly, a belief statement falls well short of that
fundamental requirement.
[82] The Department asserts that it applied s. 21 to protect the commercial interests of two
companies. I have several factual observations about the application of s. 21.
• Much of the information withheld under s. 21 does not relate to either of the two named
companies. I include in this category the information about the Department’s budget
reconciliation, contractor names, company names, requisition numbers and the names of
cities.
• One of the two named companies in the Department’s submissions consented to the
disclosure of any of its information withheld under s. 21 during the informal resolution
process with this office. This third party confirmed its consent in writing and that
29 Canada (Information Commissioner) v. Canada (Minster of National Defence), [2011] 2 SCR 306, 2011 SCC 25
(CanLII), at para 40.
20
confirmation was provided to the Department in February of this year. By virtue of s.
21(4) of FOIPOP, this information cannot be withheld under s. 21.
• At times, information severed under s. 21 is later disclosed, sometimes on the same page.
These types of inconsistencies mean that it is both unlikely the information was supplied
in confidence and that the disclosure of the information would result in the type of harm
set out in FOIPOP.
• Section 21 was applied as a justification to withhold contracts and contractual terms. It is
long established law in Nova Scotia that where information is part of a negotiated
agreement, such as a contract, s. 21 will generally not apply.30
[83] One third party continued to object to the disclosure of information. The submissions from
the third party briefly assert that the information is trade secret information. However, the
contractual terms, for example, are certainly not trade secrets as they were terms negotiated
between the third party and the Department. The third party provides no evidence to support its
assertion that the withheld information is trade secret information. Further, in terms of evidence
of harm, the third party’s evidence is speculative, stating simply, “the release of the information
could undermine [the third party] on future competitive tenders.”
[84] Much of the withheld information is information supplied under the terms of the contract.
It is apparent from the records that the third party has used its expertise to provide the
information and analysis, but that is what Nova Scotian taxpayers were paying for. Further, at
least two of the disclosed contracts with the third party provide that the information produced by
the third party is the exclusive property of the Government of Nova Scotia. The third party does
not address this contractual provision.
[85] Finding #10: I find that the Department’s evidence (as supplied by the third party) falls
well short of establishing that s. 21 was properly applied to the withheld records.
xi. Is the Department authorized to refuse access to information it deems “not responsive”
within otherwise responsive records?
[86] A small portion of information within responsive records is withheld as not responsive. I
have extensively canvassed the issues related to the use of “not responsive” within responsive
records in previous decisions.31 The Department made no new arguments on this issue during
informal resolution and provided no submissions at all in support of the application of “not
responsive” during the formal review process.
[87] Finding #11: I find that FOIPOP does not authorize a public body to withhold
information within a responsive record on the basis that it is somehow “out of scope”, “not
relevant” or “not responsive”.
30 Atlantic Highways Corporation v. Nova Scotia, 1997 CanLII 11497 (NS SC). 31 See for example, NS Review Report 19-05 2019 NSOIPC 6 (CanLII).
21
FINDINGS & RECOMMENDATIONS:
[88] In summary, I find that:
1. The Department’s decision letters and communications generally with the applicant were
not open, accurate or complete as required by s. 7(1)(a) of FOIPOP.
2. The Department failed to conduct an adequate search in violation of the duty to assist in
s. 7(1)(a) of FOIPOP.
3. The on-hold time taken between October 16 and October 31, 2014 was not authorized
under ss. 7(2) and 6(b) of FOIPOP.
4. The time extensions taken by the Department on November 24, 2014, January 5, 2015,
April 26, 2018, May 17, 2018 and June 26, 2018 were not authorized under s. 9 of
FOIPOP. The time extensions the Department granted itself in the form of the new
“received” date, unauthorized delays and late responses were also not authorized under
FOIPOP.
5. The Department’s fee for batch #1 was not authorized because it was not calculated in
compliance with s. 11 of FOIPOP and s. 6 of the Regulations
6. Section 13 was appropriately applied on pages 261-262 of batch #1. On page 263, the
Department’s application of s. 13 was overbroad.
7. Section 14(3) now applies to all of the information withheld under s. 14(1) and so s. 14
cannot apply to the records at issue.
8. The Department has failed to satisfy its burden of proving that s. 17 applies to any of the
information withheld under this provision.
9. The disclosure of the names of individuals provided strictly in a business context would
not result in an unreasonable invasion of the personal privacy of any of these individuals.
10. The Department’s evidence (as supplied by the third party) falls well short of establishing
that s. 21 was properly applied to the withheld records.
11. FOIPOP does not authorize a public body to withhold information within a responsive
record on the basis that it is somehow “out of scope”, “not relevant” or “not responsive”.
[89] I recommend that the Department review the entire response package and issue a new
release as follows:
1. Search for and produce all of the missing records. I will provide the Department with a
list of all of the missing records we have identified in our review.
2. Review all of the pages removed as “no longer relevant” or “reviewed” and disclose all
pages responsive to this request.
3. Release the six pages of records in batch #2 withheld without any exemption cited (pages
2657, 2668, 2671, 2685, 2847 and 2849).
4. Conduct a line-by-line review of the application of s. 13 and ensure that it has only been
applied to information that falls within that provision.
5. Release all information withheld under ss. 14, 17, 21 and all information withheld as “not
responsive”.
6. Release all names of individuals that appear in a business capacity. Continue to withhold
under s. 20 the name of an access to information applicant and some minor details in
relation to a child’s education.
22
7. Issue the new release within 50 days of receiving this review report.
8. Refund the applicant’s fee for batch #1.
August 14, 2019
Catherine Tully
Information and Privacy Commissioner for Nova Scotia
OIPC Files: 15-00103, 15-00104, 15-00192, 18-00283 and 18-00497